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1985

The "Facts" of Federal Subject Matter Jurisdiction

William P. Marshall
University of North Carolina School of Law, wpm@email.unc.edu

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 THE "FACTS" OF FEDERAL SUBJECT MATTER
JURISDICTION
William Marshall*
It is well-settled regarding contentions of law that a party cannot waive,
consent to, or agree to overcome a lack of federal subject matter jurisdic-
tion. Either party or the court may raise the issue of subject matter
jurisdiction at any time, including on appeal.' However, the relationship of
the foregoing rule to disputed facts is unclear. Are factual as well as legal
issues concerning jurisdiction open to determination or redetermination at
any time prior to final judgment?
The Supreme Court has never explicitly focused on the jurisdictional facts
problem, and the cases that do address the issue are inconsistent.' Two
relatively recent Supreme Court cases suggest that normal rules of adjudi-
cation are suspended when factual disputes concern the existence of subject
matter jurisdiction. 3 In these cases, the Court questioned the use of traditional
fact-finding tools, including party admissions, to establish subject matter
jurisdiction. 4 Other Supreme Court cases, however, suggest that no special
rules apply to the adjudication of jurisdictional facts.'
This issue is significant. Its answer ultimately depends on an understand-
ing of the concepts of jurisdiction and of "fact" as developed in an adver-
sary system. From a policy standpoint, the issue is equally weighty. On the
one hand is the premise that a federal court cannot exceed its jurisdictional
limitations;' on the other are the rules and principles of adjudication which
limit, and may foreclose, consideration of factual issues at points long before
final judgment.7

* William P. Marshall, B.A., University of Pennsylvania; J.D., University of Chicago.

Mr. Marshall is an Associate Professor at Case Western Reserve University School of Law.
Mr. Marshall dedicates his article as follows:
This article is gratefully dedicated to my colleagues and former students at DePaul College
of Law, and especially to Professor John Randolph Block, whose intellectual vigor and spirit
in the face of overwhelming odds is a remarkable inspiration to us all.
I. Mansfield, Coldwater & Lake Michigan Ry. v. Swan, III U.S. 379, 383 (1884) (general
rule).
2. See infra notes 29-96 and accompanying text.
3. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinea, 456 U.S. 694 (1982);
Owen Equip. & Erection Co. v. Kroger, 437 U.S., 365 (1978). See infra notes 29-62 and
accompanying text.
4. See infra notes 29-62 and accompanying text.
5. See Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 77 (1978)
(jurisdictional facts reviewed under "clearly erroneous" standard applicable to review of facts
generally); Railway Co. v. Ramsey, 89 U.S. (22 Wall.) 322, 327 (1874) ("parties may admit
the existence of facts which show jurisdiction, and the courts may act judicially upon an
admission"). See also infra notes 92-93 and accompanying text.
6. Mansfield, Coldwater & Lake Michigan Ry. v. Swan, Ill U.S. 379, 383 (1884).
7. See supra notes 112-136 and accompanying text.
 DEPA UL LA W REVIEW [Vol. 35:23

Finally, resolution of the jurisdictional facts issue may have significant

practical ramifications. An unsuspecting litigant may be without a forum
if a court suddenly "redetermines" an initial and favorable jurisdictional
fact determination to negate jurisdiction. In short, federal court litigation
requires an understanding of the jurisdictional facts issue.
This article, as the reader has undoubtedly surmised, will discuss this issue,
assuming as a given that the non-foreclosure principle is valid at least with
respect to contentions of law.' Part I of this article reviews the Supreme
Court cases in which the jurisdictional facts issue has surfaced. Part II
explores its inherent competing interests, and Part III proposes an appropriate
resolution.

I. THE CASES

A. The Rule Against Foreclosure of Subject Matter Jurisdictional Issues:

Mansfield and its Attendant Policies
The rule that allows a party to attack subject matter jurisdiction at any
time, including on appeal, was summarily announced in Capron v. Van
Noorden,9 but received its first expansive treatment in Mansfield, Coldwater
& Lake Michigan Ry. v. Swan,"0 and therefore is frequently referred to
as the Mansfield rule." The historical antecedent behind the non-foreclosure
rule is actually broader than Mansfield itself. Originally, courts held that a
decision without subject matter jurisdiction was void, and therefore vulner-
able to attack* at all stages, including after final judgment. 2 Subsequent
cases, however, rejected the voidance theory and held that subject to certain
exceptions,"' a final federal court decision deserves res judicata effect even
4
if the court lacked proper jurisdiction.

8. This is not an uncontroversial premise. See infra notes 25-27.

9. 6 U.S. (2 Cranch) 126, 127 (1804).
10. 111 U.S. 379 (1884).
II.See Dobbs, Beyond Bootstrap: Foreclosing the Issue of Subject Matter Jurisdiction
Before Final Judgment, 51 MINN. L. REV. 491, 508 (1967).
12. See Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Re-
statement (Second) of Judgments, 66 CORNELL L. REV. 534, 537 (1981); Note, Filling the Void:
Judicial Power and Jurisdictional Attacks on Judgments, 87 YALE L.J. 164, 165-71 (1977). See
also The Marshalsea, 77 Eng. Rep. 1027 (Star Chamber 1612), noted in Block, Stump v.
Sparkman and the History of Judicial Immunity, 1980 DUKE L.J. 879, 892-96 (1980). Professor
Block suggests that prior to The Marshalsea, the rule was that an action without jurisdiction
"would be voidable by plea rather than void." Id. at 893 (citing Bowser v. Collins, Y.B. Mich.
22 Edw. 4 (1483)).
13. See Kalb v. Feuerstein, 308 U.S. 433 (1940) (protection of exclusive federal jurisdiction);
United States v. United States Fidelity & Guar. Co., 309 U.S. 506 (1940) (protection of
government immunity from suit). See also Note, supra note 12, at 208-22.
14. As the United States Supreme Court stated:
We see no reason why a court, in the absence of an allegation of fraud in obtaining
the judgment, should examine again the question whether the court making the
earlier determination on an actual contest over jurisdiction between the parties, did
 19851 SUBJECT MATTER JURISDICTION 25

In federal jurisdiction, the non-foreclosure principle derives not only from

the general policy which insures "that judgments are rendered not only by
courts having the power to do so,"' 5 but also from particular concerns
regarding the allocation of judicial power in a federal system. 6 Mansfield
was a diversity case in which the specific concern was whether federal courts
could infringe upon the judicial power that otherwise belonged to the states. 7
In other jurisdictionally related circumstances, such as standing,", the purpose
in applying Mansfield's non-foreclosure principle is to assure that federal
courts remain within their constitutional authority and to protect the coor-
dinate branches of the federal government from unwarranted judicial intru-
sion.19 In this regard, Mansfield provides two safeguards against federal
court infringement. First, by allowing the court or the parties to raise juris-
diction at any time in the proceedings, the rule prevents inadvertent federal
court jurisdiction. 20 Second, by allowing the court to investigate the juris-
dictional issue on its own motion, the rule safeguards against those who
might improperly seek access to a federal forum. 2'

have jurisdiction of the subject matter of the litigation.

Stoll v. Gottlieb, 305 U.S. 165, 172 (1938). See also Chicot County Drainage District v. Baxter
State Bank, 308 U.S. 371, 378 (1940) (litigants had opportunity to raise jurisdictional challenge
in original action and were not "privileged to remain quiet and raise it in a subsequent suit");
Treinies v. Sunshine Mining Co., 308 U.S. 66, 78 (1939) ("The principles of res judicata apply
* . . as well to jurisdiction of the subject matter as of the parties"); Baldwin v. Iowa State

Traveling Men's Ass'n, 283 U.S. 522 (1931) (party who appeared to contest court's personal
jurisdiction could not subsequently attack judgment on jurisdictional grounds).
15. Moore, supra note 12, at 534.
16. Mansfield, Ill U.S. at 383. Federal courts have limited jurisdiction. Federal courts are
only empowered to hear cases that are within the judicial power of the United States, as defined
in the Constitution and entrusted to them by a jurisdictional grant by Congress. See also C.
WRIGHT, LAW OF FEDERAL COURTS § 7 (4th ed. 1983).
17. 111 U.S. at 383.
18. Standing and other questions of justiciability are properly considered to be questions
of subject matter jurisdiction and may be raised at any time. See Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26 (1976). But see Bernstine, A "Standing" Amendment to the Federal
Rules of Civil Procedure, 1979 WASH. U.L.Q. 501 (suggesting that standing may be a prerequisite
to the invocation of subject matter jurisdiction rather than subject matter jurisdiction itself).
19. See Allen v. Wright, 104 S. Ct. 3315, 3324-25 (1984) (standing questions answered by
reference to Article Ill and must be consistent with separation of powers); Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974) (reaffirmation of traditional
standing and jurisdiction concepts); United States v. Richardson, 18 U.S. 166, 188-89 (1974)
(Powell, J., concurring) (standing requirements cannot be relaxed without expansion of federal
judicial power). But see Nichol, Abusing Standing: A Comment on Allen v. Wright, 133 U.
PA. L. REV. 635 (1985) (criticizing the use of standing to enforce separation of powers principles).
20. See, e.g., Louisville & Nash. R.R. v. Mottley, 211 U.S. 149, 152 (1908). In Mottley,
the parties apparently remained unaware that federal subject matter jurisdiction was lacking
throughout the entire litigation, including argument to the United States Supreme Court.
21. The Mansfield rule, however, is not necessary to prevent jurisdiction obtained by fraud
since other mechanisms provide a remedy for that specific abuse. See, e.g., 28 U.S.C. § 1359
(1982) (jurisdiction by collusion not allowed); FED. R. Civ. P. 60(b)(3) (allowing relief from a
judgment obtained by fraud).
 DEPA UL LA W REVIEW [Vol. 35:23

The Mansfield rule is not without its costs. For example, a claimant whose
assertion of federal jurisdiction is questioned late in appellate proceedings
may lose the cause of action due to the expiration of the statute of limita-
tions. Even when the claim is not barred, a finding that a federal court
does not have jurisdiction will result in complete relitigation of the merits
in state court at considerable expense, delay, and inconvenience to the par-
ties.22 Moreover, Mansfield's non-foreclosure principle is inconsistent with
traditional notions of fairness"3 because a party may take advantage of its
own error to the detriment of its opponent. For example, a party who ini-
tially sought jurisdiction in a federal forum may avoid losing on the merits
by bringing a belated jurisdictional attack.24
For these reasons, various commentators have severely criticized the Mans-
field rule. Professor Dobbs has suggested that because of Mansfield's in-
herent inefficiencies, the rule should be discretionary. 25 Similarly, the American
Law Institute has proposed a relaxation of the rule to promote judicial
efficiency, administration, and fairness.2 6 Nonetheless, the Supreme Court,

22. See, e.g., Louisville & Nash. R.R. v. Mottley, 211 U.S. 149 (1908). In Mottley, the
plaintiffs refiled in state court after their original suit was dismissed for lack of jurisdiction,
only to lose on the merits before the United States Supreme Court. Louisville & Nash. R.R.
v. Mottley, 219 U.S. 467 (1911).
23. This argument was first noted in a dissent in Dred Scott v. Sandford, 60 U.S. (19 How.)
393, 566 (1857) (Curtis, J., dissenting), and later quoted in Mansfield and American Fire &
Cas. Co. v. Finn:
It is true, . . . as a general rule, that the court will not allow a party to rely on
anything as cause for reversing a judgment, which was for his advantage. In this,
we follow an ancient rule of the common law. But so careful was that law of the
preservation of the course of its courts, that it made an exception out of that
general rule, and allowed a party to assign for error that which was for his advantage,
if it were a departure by the court itself from its settled course of procedure.
III U.S. at 383; 341 U.S. 6, 18 n.17 (1951).
24. See American Fire & Cas. Co. v. Finn., 341 U.S. 6 (1951). The Eighth Circuit stated
the point well in the Kroger opinion:
By subtle and adroit pleading the defendant has gained a substantial advantage. If
the trial goes well, he can keep the jurisdictional point hidden. If the trial seems
to be going badly or, indeed, if it loses on the merits, it asserts that it can even
then challenge jurisdiction and successfully, so it argues, since it insists that it is
clear to all that jurisdiction may be challenged by anyone at any time.
Kroger v. Owen Equip. & Erection Co., 558 F.2d 417, 427 (8th Cir. 1977), rev'd, 437 U.S. 365
(1978).
25. Dobbs, supra note II, at 526. See also P. BATOR, P. MISHKIN, D. SHAPIRO & H.
WECHSLER, HART AND WECHSLER's THE FEDERAL COURTS AND THE FEDERAL SYSTEM, 835-36
(2d ed. 1973) [hereinafter cited as HART & WECHSLER] (describing the rule as "fetishism").
Professor Currie wryly suggests that one "modern" view "that questions of federal juris-
diction should be foreclosed if not timely raised" may be inconsistent with another "modern"
view that state laws requiring timely presentation should not be allowed to foreclose state court
considerations of federal questions. D. CURRIE, FEDERAL COURTS 181 (3d ed. 1982). See
generally Henry v. Mississippi, 379 U.S. 443 (1965) (discussing whether unasserted federal rights
in state court proceeding are entitled to subsequent review by federal courts).
26. See A.L:I., STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL
19851 SUBJECT MATTER JURISDICTION

despite some lower court resistance,2 7 has consistently applied the Mansfield
doctrine to prevent foreclosure of legal issues that affect the existence of
subject matter jurisdiction. The foreclosure of factual disputes, however, has
not had a similarly consistent history.28

B. Kroger and Ireland: A Restrictive Rule on the Adjudication of

Federal Jurisdictional Facts
The Supreme Court cases which hold that certain fact-finding methods
cannot be used to establish federal jurisdiction are relatively recent.29 In'
Owen Equipment & Erection Co. v. Kroger3 0 decided in 1978, the Court
held the facts necessary to establish federal subject matter jurisdiction may

COURTS (Official Draft, 1969). The Institute proposes that "no court of the United States shall
consider, either on its own motion or at the instance of any party, a question of jurisdiction"
after trial has begun or a decision on the merits has been reached. Id. § 1386. The A.L.I. study
argues as follows:
As many commentators have noted, e.g. I MOORE FEDERAL PRACTICE 0.60(4) (2d
ed. 1948), this fetish of federal jurisdiction is wholly inconsistent with sound judicial
administration and can only serve to diminish respect for a system that tolerates it.
Some effective limitation on the raising and consideration of jurisdictional issues
seems long overdue.
Id. at 366.
27. See Kroger v. Owen Equip. & Erection Co., 558 F.2d 417, 426 (8th Cir. 1977), rev'd,
437 U.S. 365 (1978) (discussed infra notes 38-52 and accompanying text); Murphy v. Kodz,
351 F.2d 163, 168 (9th Cir. 1965) (motion to remand to state court denied despite judgment
for and deletion of only party entitled to involve federal jurisdiction). See also DiFrischia v.
New York C. R.R., 279 F.2d 141, 144 (3d Cir. 1960). In DiFrischia the defendant objected to
diversity jurisdiction of the court, but subsequently withdrew his objection. After two years of
pretrial preparation and the expiration of the plaintiff's statute of limitation, the defendant
renewed his jurisdictional challenge. The trial court concluded that diversity was lacking and
dismissed the case. The Third Circuit reversed, and noted that "[a] defendant may not play
fast and loose with the judicial machinery and deceive the courts." Id. at 144.
28. Some commentators, like Professor Dobbs, argue that Mansfield does not properly
apply to the adjudication of jurisdictional facts since his interpretation of the rule requires
a court to re-open the jurisdictional issue only when "the record does not affirmatively show
jurisdiction." Mansfield, Ill U.S. at 383. Since "facts" are part of the record, they are out-
side the scope of the Mansfield rule. Professor Dobbs' argument does have some force, but
it is nonetheless true, as Dobbs admits, that the United States Supreme Court and lower federal
courts have not limited the jurisdictional inquiry, as he has suggested. Dobbs, supra note 1I,
at 510, 519. See also Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) (discussed
infra notes 35-44 and accompanying text); Morris v. Gilmer, 129 U.S. 315 (1889) (discussed
infra note 29).
29. One might argue that an older case, Morris v. Gilmer, 129 U.S. 315 (1889), also stands
for this proposition. In Morris, the Court allowed the defendant to belatedly challenge the
plaintiff's factual assertion of his own (the plaintiff's) citizenship. Although normal rules of
adjudication would not have allowed belated attack, the Court allowed this challenge.
As Professor Dobbs has noted, however, Morris is best explained as a party's attempt to gain
jurisdiction by fraud. Dobbs, supra note i, at 510. Belated jurisdictional attacks based on
fraudulent conduct are permissible and do not represent a deviation from normal rules of
adjudication. See FED. R. Civ. P. 60(b).
30. 437 U.S. 365 (1978).
 DEPA UL LA W RE VIEW [Vol. 35:23

not be established by estoppel. In Insurance Corp. of Ireland v. Compagnie

des Bauxites de Guinee,3 ' a 1982 decision, the Court held that lower courts
could not establish jurisdictional facts through discovery sanctions. What
is remarkable about Kroger and Ireland is that the Court reached these results
without considering jurisdictional precedent or implication. In Kroger, the
Court's entire discussion of the jurisdictional facts issue occurred in one foot-
note.3" The Court's discussion in Ireland was dicta." Moreover, the expan-
sive reasoning that supports both decisions places into serious question the
ability to effectively resolve jurisdictional fact disputes by any fact-finding
4
means-.
The plaintiff in Kroger was an Iowa citizen who sued a Nebraska defendant
in a diversity action." The original defendant impleaded a third-party defend-
ant, Owen Equipment and Erection Co. (Owen), who initially admitted that
it was also a Nebraska citizen.16 The plaintiff subsequently amended her
complaint and named Owen as an additional defendant to the original suit.
After the court dismissed the original defendant from the action, the case
proceeded to trial. On the third day of trial, however, Owen indicated that
its principal place of business was in Iowa and not Nebraska. Owen therefore
moved for dismissal of the suit based on the non-diversity between the
parties."
Both the district court and the Eighth Circuit Court of Appeals rejected
Owen's motion.3 8 The principal holding of the Eighth Circuit was that the
doctrine of ancillary jurisdiction allowed the court to retain jurisdiction over
Owen. 3 9 Alternatively, the appellate court 40suggested, the defendant was
estopped from denying its earlier admission.
The Supreme Court reversed. The Court's central holding, and the one
for which Kroger has achieved immortality in casebooks, was that ancillary

31. 456 U.S. 694 (1982).

32. 437 U.S. at 377 n.21.
33. The Ireland Court focused on the use of discovery sanctions to confer personal juris-
diction. Subject matter jurisdiction was not at issue. See infra notes 45-49 and accompanying
text.
34. See infra notes 110-35 and accompanying text.
35. Kroger was a wrongful death action in which the plaintiff alleged that her husband was
electrocuted due to defendant's negligence.
36. Owen's answer stated, in pertinent part, that it "[aldmits that Owen Equipment and
Erection Company is a corporation organized and existing under the laws of the State of
Nebraska." 437 U.S. at 369.
37. The confusion was apparently caused by a change in the course of the Missouri River,
which serves as the boundary line between Iowa and Nebraska. This change placed the scene
of the accident and Owen's main office within the state of Iowa. Id. at 369 n.5.
38. Kroger v. Owen Equip. & Erection Co., 558 F.2d 417, 426 (8th Cir. 1977), rev'd, 437
U.S. 365 (1978).
39. Kroger, 558 F.2d at 427.
40. Id. at 427. The Eighth Circuit argued that the defendant's silence concerning the
jurisdictional issue estopped that party from raising the belated jurisdictional attack "under the
most elementary considerations of judicial fairness." Id.
1985] SUBJECT MATTER JURISDICTION

jurisdiction may not be applied to allow the maintenance of a claim of a

non-diverse plaintiff against a third party defendant.4' In a footnote, the
Court rejected the Eighth Circuit's estoppel argument as well. The Court
stated that "the asserted inequity in the repondent's alleged concealment of
42
its citizenship is irrelevant."
If Owen had attempted to avoid a previous non-jurisdictional admission
at trial, the courts doubtlessly would have treated the issue differently.
Generally, the Federal Rules of Civil Procedure allow a party to avoid pre-
trial admissions only when the amendment will not prejudice the opponent
party. 43 The Supreme Court, however, held that any prejudice suffered by
Mrs. Kroger was "irrelevant," even though the statute of limitations might
bar her claim in state court." The Court's decision, in essence, gave Owen's
admission of domicile no legal effect. The thrust of Kroger therefore is ap-
parently that parties are not able to conclusively admit jurisdictional facts.
The Court's decision in Ireland was more surprising because the case
concerned personal, not subject matter, jurisdiction. In Ireland, Compagnie
de Guinee (CBG) brought a diversity action against its insurers for failure
to indemnify. 4 Certain defendants contended that the court lacked jurisdic-
tion over the persons. 46 In response, the plaintiffs sought to discover one

41. 437 U.S. at 375-76.

42. Id.at 377 n.21.
43. See FED. R. Civ. P. 15 (pleadings); FED. R. Civ. P. 36 (requests to admit). In Kroger
the relevant rule would have been Rule 15(b), since the admission was in the pleadings and the
effort to avoid the admission occurred at trial. Rule 15(b) in total provides as follows:
(b) Amendments to Conform to the Evidence. When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be Amended
and shall do so freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the court that the admission
of such evidence would prejudice him in maintaining his action or defense upon
the merits. The court may grant a continuance to enable the objecting party to
meet such evidence.
FED. R. Ctv. P. 15(b).
44. 437 U.S. at 376-77 n.20.
45. In Ireland, CBG obtained $10,000,000.00 of business interruption insurance from the
Insurance Co. of North American (INA) and $10,000,000.00 of excess insurance from a group
of foreign insurance companies, including the Insurance Corp. of Ireland. Ultimately, CBG
sought indemnification from all of its insurers when the company lost over $10,000,000.00 from
mechanical problems in its bauxite mines. 456 U.S. at 696-97.
46. When CBG instituted its suit, INA submitted to the jurisdiction of the court; however,
the foreign insurers challenged the Pennsylvania court's in personam jurisdiction. The insurer
sought summary judgment on the personal jurisdiction issue, and the motion was denied. Id.
at 698 n.5.
 DEPA UL LA W REVIEW [Vol. 35:23

defendant insurer's business records that ostensibly would have established

the propriety of the court's personal jurisdiction.47 Even after the court
order, however, the defendants repeatedly failed to respond to the discovery
request. The district court therefore issued a discovery sanction that allowed
the plaintiff to establish jurisdictional facts through discovery.4 8 Ireland
raised the specific question of whether the use of discovery sanctions to
"find" a fact necessary to establish personal jurisdiction was constitutionally
permissible.
The Supreme Court found that the use of the sanction was constitutional.49
The Court relied heavily on Hammond Packing v. Arkansas,50 a non-
jurisdictional case which held that the creation of a presumption of fact
against a party who refuses to present proof on a disputed issue is not a
constitutional violation." According to Hammond, the disputed fact could
be determined as "constructively" admitted without offending due process
principles. Viewing the discovery sanction as an incorporation of Hammond's
constructive admission principle, the Ireland Court affirmed the propriety
of its application even when disputed fact issues affect the legal issue of
personal jurisdiction."2

47. For CBG to establish the insurers' contacts with Pennsylvania, the company sought
access to the insurers' business records through the use of discovery requests. CBG initially
requested "[c]opies of all business interruption insurance policies issued by Defendant during
the period from January I, 1972 to December 31, 1975." The request was later narrowed to
copies of any policies delivered in, or which covered a risk in, Pennsylvania. Id. at 698.
48. The discovery sanction was issued pursuant to Federal Rule of Civil Procedure 37(b)(2).
The rule states:
(2) Sanctions by Court in Which Action is Pending. If a party or an officer,
director, or managing agent of a party or a person designated under Rule 30(b)(6)
or 31(a) to testify on behalf of a party fails to obey an order to provide or permit
discovery, including an order made under subdivision (a) of this rule or Rule 35,
or if a party fails to obey an order entered under Rule 26(0, the court in which
the action is pending may make such orders in regard to the failure as are just,
and among others the following:
(A) An order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the purposes of the action
in accordance with the claim of the party obtaining the order ....
FED. R. Crv. P. 37(b)(2).
49. 456 U.S. 694 (1982).
50. 212 U.S. 322 (1909).
51. Id. at 351. Hammond Packing Company, an Illinois corporation doing business in
Arkansas, challenged the constitutionality of an Arkansas statute that authorized the state to
order the production of witnesses, books, and documents located outside the state from a
foreign corporation for evidentiary use. Hammond's refusal to produce the materials resulted
in an action against it for forfeiture of its Arkansas business license. The Court upheld the
statute and found that a state's authority over foreign corporations includes the power to
compel production of documents for investigation, including documents located outside the
state.
52. 456 U.S. at 705-07.
1985] SUBJECT MATTER JURISDICTION

In the Ireland holding, the Court resolved an important controversy

regarding personal jurisdiction and the use of discovery sanctions." Because
of the manner in which the Court crafted the opinion, however, Ireland is
likely to have a substantial impact on the adjudication of subject matter
jurisdictional issues as well. The Ireland Court extensively discussed federal
subject matter jurisdiction as a foil to the personal jurisdictional issue. For
the Court it was critical that a party could waive or consent to personal
jurisdiction but not to subject matter jurisdiction. On this basis, the Court
concluded that a party may use discovery sanctions to establish facts perti-
nent to personal jurisdiction, but not pertinent to subject matter jurisdiction." '
The Ireland Court's distinction between personal and subject matter ju-
risdiction in the use of discovery sanctions is perplexing." The Court un-
questionably overreached in deciding the subject matter jurisdictional issue.
Ireland did not raise subject matter jurisdiction issues, and the Court's
analysis placed it, at the very least, on unsettled ground. More importantly,
the Court's differentiation between the two doctrines is of dubious relevance
to the issue of discovery sanctions.
The Ireland Court's distinction between personal and subject matter ju-
risdiction was superficially correct. It is axiomatic that a party may waive
6
or consent to personal jurisdiction, but not to subject matter jurisdiction."

53. The Eighth Circuit's decision to allow the use of discovery sanctions to establish facts
pertinent to the existence of personal jurisdiction directly conflicts with the Fifth Circuit's
decision in Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134 (5th Cir. 1980), cert.
denied, 451 U.S. 1008 (1981).
54. 456 U.S. at 701-05.
55. The Court's discussion in Ireland is contrary to its decision in World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 256 (1980), a landmark personal jurisdiction decision that construed
the doctrine to implicate federalism concerns that transcend the rights of the individual defend-
ant.
For a discussion of the relationship between federalism and personal jurisdiction, see Lewis,
The Three Deaths of "State and Sovereignty" and the Curse of Abstraction in the Jurisprudence
of Personal Jurisdiction, 58 NOTRE DAME LAW. 699 (1983) (examining relationship of state
sovereignty and personal jurisdiction), and Redish, Due Process, Federalism and Personal
Jurisdiction: A Theoretical Evaluation, 75 Nw. U.L. REV.. 1112 (1981) (distinguishing due
process from federalism). See also Comment, Federalism, Due Process, and Minimum Contacts:
World-Wide Volkswagen Corp. v. Woodson, 80 COLUM. L. REv. 1341 (1980) (comparing due
process with federalism).
During the 1985 term, the Supreme Court again entered the personal jurisdiction debate,
this time without implicating federalism concerns at all. See Burger King Corp. v. Rudzewicz,
105 S.Ct. 2174 (1985).
56. A party may consent to personal jurisdiction through appearance before the court. See
McDonald v. Mabee, 243 U.S. 90 (1917). Waiver of the jurisdictional defense may be given by
contract in advance of litigation. See National Equip. Rental Ltd. v. Szukhent, 375 U.S. 311
(1964). Parties can also stipulate to personal jurisdiction. See Petrowski v. Hawkeye-Security
Ins. Co., 350 U.S. 495 (1956).
57. Mansfield, Coldwater & Lake Michigan R.R. v. Swan, Ill U.S. 379 (1884).
32 DEPAUL LA W REVIEW [Vol. 35:23

What the Ireland Court ignored, however, was that jurisdictional findings
based upon the existence of background facts are wholly distinct from estab-
lishing jurisdiction by waiver or consent." If the defendant does not contest
the existence of certain facts, its recourse is an admission. This factual
admission does not constitute consent or waiver of the legal defense. A defen-
dant may, for example, admit that its product injured a party in the forum
state without waiving its defense that it has insufficient contacts with the
forum state to justify the imposition of personal jurisdiction. 9 Conversely,
a defendant may waive its personal jurisdiction defense without admitting
the existence of facts which justify the imposition of personal jurisdiction."
Since the Ireland Court previously equated the discovery sanction with the
constructive admission of background facts,' the notion that a party may
waive personal jurisdiction would appear to be beside the point.
The sole question in Ireland was "when does 'due process' allow facts
to be constructively admitted?" ' 6 The Court's analysis, however, equated the

58. Older cases suggested that a defendant's contacts with a forum may indicate implied
consent to jurisdiction. See, e.g., Hess v. Pawloski, 274 U.S. 352 (1927) (non-resident motorist
in accident impliedly consented to jurisdiction). See also Kurland, The Supreme Court, The
Due Process Clause and the In Personam Jurisdiction of State Courts-From Pennoyer to
Denckla: A Review, 25 U. Cm. L. REV. 569, 578-582 (1958) (consent thesis based on state's
power to exclude permission or regulate business). The Court ultimately rejected the fiction of
implied consent in International Shoe Co. v. Washington, 326 U.S. 310 (1945).
59. Worldwide Volkswagon Corp. v. Woodson, 444 U.S. 286 (1980).
60. One practical difference in this regard is the effect that a judgment has. Jurisdiction
found pursuant to the existence of background facts would be collaterally estopped in suggested
cases. Jurisdiction by consent has no such effect.
61. Ireland has also been soundly criticized on its conclusions regarding the due process
limitations on discovery sanctions issue. The Court distinguished between constitutionally per-
missible sanctions based upon presumptions of fact and punitive sanctions which are not al-
lowed to support a finding of fact. Compare Hammond Packing v. Arkansas, 212 U.S. 322
(1909) (presumption upheld) with Hovey v. Elliot, 167 U.S. 409 (1897) (presumption denied).
One commentator has argued, however, that discovery sanctions are punitive and have the
purpose of deterring the violation of discovery orders. Thus, according to that writer, under
the Court's own analysis the disputed fact should not be presumed. See Note, Insurance Corp.
of Ireland v. Compagnie des Bauxites de Guinea: Justifying Establishment of Jurisdiction as
a Discovery Sanction, 70 CALIF. L. REV. 1446 (1982). In this respect it is notable that in some
cases the Court has acknowledged that discovery sanctions do serve a deterrent purpose. Road-
way Express, Inc. v. Piper, 447 U.S. 752 (1980); National Hockey League v. Metropolitan
Hockey Club, 427 U.S. 639 (1976). The conclusion that non-compliance with jurisdictional
discovery indicates bad faith and willful avoidance of jurisdiction on meritless grounds is also
subject to criticism. Instances of willful non-compliance may arise from a good faith belief
that the court lacks jurisdiction. See Note, Sanctions to Enforce Jurisdictional Discovery: Con-
stitutional & Prudential Limitations, 68 VA. L. REv. 921, 936 (1982).
62. Some confusion may occur because both constructive admissions and personal jurisdic-
tion are termed "due process" issues. The two due process issues, however, are analytically
distinct. Constructive admissions concern the constitutionality of presumptions in fact finding.
See Hammond Packing v. Arkansas, 212 U.S. 322 (1909); Tot v. United States, 319 U.S. 463
(1943). The other due process issue pertains to the power of a court over the person of the
defendant. See International Shoe Co. v. Washington, 326 U.S. 310 (1945).
19851 SUBJECT MATTER JURISDICTION

"constructive" admission with waiver and consent. It therefore brings fac-

tual admissions under the rule that a party cannot consent to or waive sub-
ject matter jurisdiction. Thus, Ireland, like Kroger, appears to stand for the
proposition that jurisdictional facts cannot be admitted.

C. Opposing Authority
Other authority suggests that the adjudication of jurisdictional facts de-
serves treatment similar to the adjudication of facts generally.6 The first case,
Pacific & St. Louis Railway Co. v. Ramsey,M6 decided in 1874, appeared to
be explicitly dispositive of the issue. In that case the Supreme Court stated:
Consent of parties cannot give the courts of the United States jurisdiction
but the parties may admit the existence of facts which show jurisdiction,
and the courts may act judicially upon such an admission."
Ramsey, however, may be easily confined to its unusual circumstances.
The case arose out of the administrative problems that occurred in the
aftermath of the Chicago fire of 1871. Critical court documents were lost
during the fire, including those pertinent to the federal court's jurisdiction
over the Ramsey litigation.66 In an effort to compensate for the destroyed
documents, both parties stipulated that the requisite documents were filed
properly but were destroyed by fire. 67 The Supreme Court addressed the
validity of this stipulation.
The Court's opinion indicated that the parties' stipulation to the existence
of the documents sufficiently established the jurisdictional requisites. 6' The
Court was careful not to rely exclusively on the parties' admissions, and
found "irresistable" the conclusion that the original papers established
jurisdiction. 69 If the papers were insufficient, the Court argued:
Either party ... could have moved to remand, or the court itself, without
a motion, could have sent the case back if the jurisdiction did not appear.
As both the court and the parties accepted the transfer, it cannot for a
moment be doubted that the files did then contain conclusive evidence of
jurisdictional facts.70
In short, the Supreme Court did not rely on the parties' agreement, but
assumed that the lower federal court had already found jurisdiction established.

63. Interestingly, these opinions resemble the suggestions that Ireland and Kroger make by
implication rather than suggestion. See infra notes 70-95, 136 and accompanying text.
64. 89 U.S. (22 Wall.) 322 (1874).
65. Id. at 327.
66. The documents in question indicated that Ramsey, a removal case, was properly trans-
ferred from state court.
67. 89 U.S. at 324.
68. Id. at 328.
69. Id.
70. Id.
 DEPA UL LA W REVIEW [Vol. 35:23

Ramsey, therefore, cannot be read to establish a broad rule for the adjudication
of jurisdictional facts by admission or otherwise."
A second decision actually supports the proposition that proof of juris-
dictional facts will be treated more leniently than proof of non-jurisdictional
facts. In St. Paul Mercury Indemnity Co. v. Red Cab Co., 7 the Supreme
Court held that the federal jurisdictional monetary amount requirement" would
be deemed satisfied absent proof to a legal certainty that the requisite amount
did not exist." Moreover, the Court indicated that a still more lenient
standard might be applied in a removal case if the plaintiff unfairly sought
to deprive a defendant of the federal forum. 7 The plaintiff in St. Paul
originally commenced a state suit and alleged an amount over the jurisdic-
tional limit. 76 After the defendant removed the case to federal court, the
plaintiff submitted a bill of particulars which indicated that the damages in
the case were less than the jurisdictional amount. 77 Nonetheless, the Supreme
Court held that the federal court appropriately retained jurisdiction. The
Court stated that as long as the plaintiff had a good faith belief in the
damage amount at the institution of the suit, the court's jurisdiction should
be maintained even if it is later shown to a legal certainty that the jurisdic-
tional amount did not exist.7 s
It is difficult to reconcile St. Paul with Kroger and Ireland. In order to
bring a diversity case, both the amount of damages and the parties' diversity
of citizenship must be shown.' 9 St. Paul presumed that the jurisdictional fact
existed unless it was shown to a certainty that it did not.w° Ireland, however,
apparently presumed that jurisdiction did not exist even when there existed
a factual presumption in its favor." Second, St. Paul held that a plaintiff
need only establish a good faith belief that the amount in controversy ex-
isted at the outset of the suit.' Kroger, on the other hand, struck down
a similar good faith belief as to the existence of diversity even when the
defendant misled the plaintiff into believing that diversity existed.' Third,
St. Paul indicated that if the state court action were removed to a federal

71. But see Dobbs, supra note I1(Ramsey established that jurisdictional facts may be
admitted).
72. 303 U.S. 283 (1938).
73. 28 U.S.C. § 1331 (1976) provides in part that "the district court shall have original
jurisdiction where the amount in controversy exceeds $10,000."
74. 303 U.S. at 289.
75. Id.at 290-92.
76. Id.at 284.
77. Id.at 285.
78. Id.at 289.
79. The amount in controversy must exceed $10,000 and the parties in the action must be
citizens of different states. 28 U.S.C. § 1332 (1976).
80. 303 U.S. at 289.
81. The presumption was created by the defendant's non-answer. See supra notes 45-53
and accompanying text.
82. 303 U.S. at 296.
83. Kroger, 437 U.S. at 383 (White, J.,dissenting).
1985] SUBJECT MATTER JURISDICTION

court, the case should be maintained even if a party subsequently proved

to a legal certainty that the amount in controversy was lacking at the outset
of the suit." ' Kroger, however, held that if litigants subsequently present
information showing that diversity did not exist, the case should be dis-
missed. 5
St. Paul arguably is distinguishable from Kroger and Ireland. One potential
argument is that the jurisdictional amount requirement is clearly a statutory
limitation and therefore does not present any Article III problems.8 6 The
validity of this argument, however, is not clear. The Kroger Court explicitly
stated that its holding was statutorily and not constitutionally based."s How-
ever, the Court may have been referring to its ruling on ancillary jurisdiction
rather than jurisdiction by estoppel."s
A second argument is that the jurisdictional amount is in itself a peculiar
"fact" that is not easily ascertainable with any degree of precision." A
greater latitude for proof of this fact is therefore required. This argument
undoubtedly has merit. 90 At the very least, however, the argument presumes
that under some circumstances the adjudication of facts deserves a greater
level of flexibility than the Mansfield rule provides.
Mansfield has also been notably relaxed in reference to the adjudication
of jurisdictional facts on appeal. If the adjudication of jurisdictional facts
is tantamount to raising jurisdictional issues, as Kroger and Ireland suggest,
a complete or at least partial reopening of the jurisdictional facts dispute
is presumably required on appeal. However, the Supreme Court held other-
wise in Duke Power v. Carolina Environmental Study Group.9'

84. 303 U.S. at 292-93.

85. 437 U.S. at 374.
86. 28 U.S.C. § 1332 (1958).
87. 437 U.S. at 371-73.
88. The Court's holding that estoppel principles were irrelevant was footnoted to the Court's
statement (in reference to ancillary jurisdiction) that, "[tlo allow the requirement of complete
diversity to be circumvented would simply flout the Congressional command." 437 U.S. at
377 n.21. The reference to statutory considerations at this juncture seems to indicate that the basis
of the estoppel holding was statutory. Yet, in the footnote itself, the Court cited American Fire
& Cas. Co. v. Finn, 341 U.S. 6 (1951), which has been considered an Article III case, thereby
suggesting that the Court's holding was constitutionally based. The simplest and most likely
interpretation, however, is that the Court did not consider the issue.
89. Cf. McNutt v. General Mptors Acceptance Corp., 298 U.S. 178, 190 (1935); Gibbs
v. Buck, 307 U.S. 66, 72 (1938); 1 J. MooRE, J. LucAs, H. FINK, D. WECKSTEIN, & J. WICKER,
MOORE's FEDERAL PRACTICE 0.9211], at 860 (1985) [hereinafter cited as MOORE's FEDERAL
PRACTICE].
90. However, the domicile requirement likewise may not be susceptible to ascertainment
with any degree of precision. See Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974). The determination
of the principal place of business of a corporation, for example, often is particularly difficult
to ascertain. Sabo v. Standard Oil Co. of Indiana, 295 F.2d 893 (7th Cir. 1961); Kelly v. U.S.
Steel Corp., 284 F.2d 850 (3d Cir. 1960); Scot Typewriter Co. v. Underwood Corp., 170
F. Supp. 862 (S.D.N.Y. 1959).
91. 438 U.S. 59 (1978).
 DEPA UL LA W REVIEW [Vol. 35:23

The constitutionality of the Price-Anderson Act was at issue in Duke

Power. The act imposed a limitation on liability for nuclear accidents that
result from the operation of federally licensed private nuclear power plants.
The Duke Power plaintiffs, an environmental group, a labor union, and
local residents sued a public utility and the Nuclear Regulatory Commission
to declare the act unconstitutional. The plaintiffs' purported injuries were,
in part, environmental harms created by the operation of a nuclear power
plant in "dangerous proximity to [their] living and working environment." 92
The plaintiffs claimed that these injuries established their standing. Since their
injuries were not directly caused by the act itself, the plaintiffs had to
demonstrate a causal relationship between the operation of the facility and
the Price-Anderson Act in order to establish standing. In short, the plaintiffs
had to show that the nuclear facility would probably not be built absent
the act's liability protections.
The district court heard disputed testimony on the causation issue, and
concluded that the construction and operation of the nuclear facility would
not be maintained absent the Price-Anderson Act protection. The plaintiffs
therefore succeeded in their standing assertion. The Supreme Court affirmed
the decision by deferring to the lower court's factual finding under the
"clearly erroneous" standard, which applies to the review of facts generally. 9"
No de novo or other extraordinary review was required in Duke Power simply
because the questioned facts were jurisdictional, as a literal application of
Mansfield would suggest.
Duke Power, of course, may not apply to the adjudication of jurisdic-
tional facts in the trial court since different policy considerations govern the
litigation of facts on appeal.94 Even so, Duke Power is significant in that,
like St. Paul, it apparently recognized that litigation-related policy issues are
critical to the jurisdictional facts issue. More importantly, however, was the
Court's cavalier approach to the jurisdictional facts issue. Review of the
jurisdictional facts was limited to the extremely lenient "clearly erroneous"
standard. Yet, if courts are to protect the limits of federal jurisdiction as
stringently as Kroger and Ireland suggest, should not a more searching review
be required? The Court, after all, has set forth a special standard of review
in libel cases because of the significance attached to the factual determina-
tion." The thrust of Duke Power, on the other hand, is that a jurisdictional

92. Id. at 73.

93. The Duke Power Court stated: "[Wle cannot say . that the finding by the trial court
of a substantial likelihood that the McGuire and Catawba nuclear power plants would be
neither completed nor operated absent the Price-Anderson Act is clearly erroneous; and hence,
we are bound to accept it." Id. at 77.
94. For example, to reopen the jurisdictional issue on appeal might require the submission
of new evidence that, in turn, might lead the appellate court to remand the case to the trial
court. Non-literal adherence to Mansfield would avoid this inefficiency. Cf. Hartog v. Memory,
I i6 U.S. 588 (1886) (case remanded for hearing on disputed issues of jurisdiction).
19851 SUBJECT MATTER JURISDICTION

fact is simply just a fact. In this sense, the Duke Power holding is clearly
96
at odds with Kroger and Ireland.
II. THE COMPETING INTERESTS

Given the contrasting results of the preceding cases and the Supreme
Court's failure to articulate a clear doctrine, it is fair to state that no cohesive
pattern has emerged regarding the adjudication of jurisdictional facts. Cer-
tainly the disarray of lower court decisions amply demonstrates this confu-
sion. 9' An independent examination of the jurisdictional facts issue, therefore,
is necessary.
To begin, it is noteworthy that some rules of adjudication, if applied to
jurisdictional issues, would clearly offend Mansfield principles. For exam-
ple, a party may admit a non-jurisdictional legal conclusion." However, in

95. Bose Corp. v. Consumers Union of U.S., 104 S. Ct. 1949 (1984).
96. Larson v. Valente, 456 U.S. 228 (1982), is also inconsistent with Kroger and Ireland. In
Larson, the plaintiff, the Unification Church, attacked provisions of a Minnesota statute which
required that certain religious organizations file reporting statements with the state's department
of commerce. The defendants argued that the plaintiff lacked standing to attack this provision
since the church had not yet established that it was a religious organization. The Court responded
to this argument by noting that the state purposely used the provision against the plaintiff in
order to "compel the Unification Church to register and report under the Act." Id. at 241.
Thus, the Court held that the "attempted use of the ... rule as the State's instrument of
compulsion necessarily gives appellees standing to challenge the constitutional validity of the
rule." Id. The Court argued that since the state, in its regulatory capacity, was purportedly
treating the organization as a religious entity, the state would not be permitted in its litigation
capacity to allege that the organization was not religious for purposes of denying standing. As
the Court stated: "It is logically untenable for the State to take the position that the Church
is not [a religious] organization because that position destroys an essential premise of the
exercise of statutory authority at issue in this suit." Id. at 240. Therefore, this decision can be
construed only as an application of estoppel principles. However, the ambiguous nature of the
Court's ruling and its failure to articulate estoppel principles clearly limits Larson's precedential
value regarding the jurisdictional issues presented in the case. But see id. at 258 (Rehnquist, J.,
dissenting).
97. Compare Eisler v. Stritzler, 535 F.2d 148 (Ist Cir. 1976) (jurisdictional facts may not be
admitted) with Lackawanna Refuse Removal v. Proctor & Gamble, 86 F.R.D. 330 (M.D. Pa.
1979) (jurisdictional facts may be admitted). Before Kroger, Professor Dobbs believed that facts
could be admitted. Dobbs, supra note II. The Third Circuit apparently suggested that juris-
diction may be gained by estoppel of jurisdictional fact issues. See DiFrischia v. New York
Cent. R.R., 279 F.2d 141 (3d Cir. 1960). See also Greenbaum v. United States, 360 F. Supp.
784 (E.D. Pa. 1973) (when plaintiff misled by government, jurisdiction allowed). However, the
Fifth Circuit ruled that jurisdictional fact issues may not be estopped. In re Southwestern Bell
Tel. Co., 535 F.2d 859 (5th Cir. 1976). The rule is clear that a party may not be estopped
from raising jurisdictional issues of law. American Fire & Casualty Co. v. Finn, 341 U.S. 6
(1951).
98. Federal Rule of Civil Procedure 36 allows for the admission of "any matters . . . set
forth in the request that relate to statements or opinions of fact or of the application of law
to fact." This provision was added to Rule 36 in a 1970 amendment. Prior to that only matters
"of fact" were allowed. The Advisory Committee Notes on Rule 36 explain that allowing
parties to admit legal applications and conclusions aids the trial process because admissions
"even more clearly narrow the issues."
 DEPA UL LA W REVIEW [Vol. 35:23

a jurisdictional dispute, a party who admits that "this court has jurisdic-
tion" or that "diversity exists" has admitted precisely what Mansfield pro-
hibits. 9" The admission is, in effect, a consent that jurisdiction exists. Simi-
larly, while a party generally may admit facts that are not within its per-
sonal knowledge,' 00 this admission has little, if any, probative value when
applied to jurisdictional issues. Thus, an admission without personal
knowledge again may be viewed as simply a concession of jurisdiction.'"'
For these reasons, there is justifiable resistance in finding that such admis-
sions are binding. In fact, these admissions were vulnerable to belated at-
tacks even before Kroger and Ireland.'°2
Arguably, other methods of proof are also simply waivers of the legal
issue. The theoretical basis of the conclusiveness of judicial admissions' 3
whether within or without a party's personal knowledge is that the admission
constitutes a waiver of proof."°4 To waive proof on the issue is to waive the
issue itself. As such, one could argue that the waiver is inappropriate when
the issue is subject matter jurisdiction.

99. Page v. Wright, 116 F.2d 449 (7th Cir. 1940). In Page, the plaintiff alleged that she
was a resident of Florida, and upon "information and belief" she also alleged that the defendant
was a resident of Kentucky. The defendant responded that "this defendant admits that this
court has jurisdiction of the parties hereto, and of the subject matter hereof." The defendant
subsequently attempted to show that he too was a resident of Florida. The trial court, however,
denied the defendant leave to amend the answer and motion to dismiss for lack of jurisdiction.
The appellate court reversed, holding that the defendant's admission of the legal conclusion
that the court had jurisdiction was nothing more than consent. "ITlhe defendant admitted no
facts from which the court could say, as a matter of law, that jurisdiction existed." Id. at 451.
100. FED. R. EVID. 801 (1975).
101. In non-jurisdictional disputes, personal knowledge is arguably unnecessary for an ad-
mission to have probative value. One reason for this argument is that admissions are often
against interest, and "when a man speaks against his own interest it is to be supposed that he
has made an adequate investigation." C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE
778 (3d ed. 1984). Probative value is also presumed because a litigant has incentive to be
informed on issues in which no personal knowledge exists. Neither rationale applies to admissions
of jurisdictional facts when the party making the assertion does not oppose jurisdiction. Since
the party is disinterested in the jurisdictional issue, the admission is not against the party's
interest, and is therefore unlikely to lead to an independent investigation.
102. See, e.g., Gilbert v. David, 235 U.S. 561 (1917) (plaintiff's admission of own citizen-
ship held vulnerable to belated attack); Morris v. Gilmer, 129 U.S. 315 (1889) (same).
103. Judicial admissions are those voluntarily made in court by a party and, until withdrawn
or amended, are conclusive of the disputed issue. Judicial admissions should be distinguished
from extra-judicial (or evidential) admissions which are a party's words or conduct that are
offered into evidence against the party's interest. See MCCORMICK, supra note 101, at 778.
104. 9 J. WIGMORE, A TREATISE ON THE ANGLO AMERICAN SYSTEM OF EVIDENCE IN TRIALS
AT THE COMMON LAW § 2588 (1940). Wigmore, under the heading "Theory of Judicial Admis-
sions," refers to an admission as an "express waiver," by a party or his attorney, such that
the truth of an alleged fact is conceded, and the other party need not offer any evidence to
prove it. See also 4A MOORE'S FEDERAL PRACTICE, supra note 89, at 36.02 ("judicial admissions
expedite trial by weeding out facts over which there is no dispute").
 19851 SUBJECT MATTER JURISDICTION

However, the admissibility of a judicial admission is not based on waiver

concerns alone. There is also probative value to the matter admitted,'", par-
ticularly when based on personal knowledge.10 6 For example, a person who
admits he resides and intends to remain in Nebraska does more than poten-
tially waive a diversity objection. The admission also provides factual sup-
port for the conclusion that the person in fact is a citizen of Nebraska.' 7
Indeed, this example demonstrates how critical the admissions are to the
adjudication of diversity jurisdiction. Intent to remain living in a particular
area, a fact necessary to establish domicile,' 0 ' is uniquely within the per-
sonal knowledge of the party. The disallowance of the party's admission
creates a severe roadblock to the resolution of the domicile issue.
Nonetheless, there remains a second, strongly persuasive argument against
the use of admissions (either judicial or extra-judicial) in establishing subject
matter jurisdiction. The primary theoretical basis for the admissibility of
admissions is the adversarial nature of our legal system, and not the reliability
of the matter asserted.' °9 However, the interests of the parties may not always
be adverse regarding disputes of subject matter jurisdiction. A party, for
example, may "admit" domicile in a given state in response to an allegation
of diversity jurisdiction. If this party actually is predisposed, or is ambivalent
to litigating in the federal forum, its interest is not in any real sense adverse
to its opponent."' Thus, one of the major theoretical bases for the admissibil-
ity of an admission is absent, and the admission itself may legitimately be
questioned.
Does this argument require a court to disallow a party's admission of
jurisdictional facts? If so, it holds extraordinary implications because so much
of factual proof depends on adversary system considerations.'' There are

105. "When a pleading is amended or withdrawn, the superseded portion ceases to be a

conclusive judicial admission; but it still remains as a statement once seriously made by an
authorized agent, and as such it is competent evidence of the facts stated, though controvertible,
like any other extra-judicial admission made by a party or his agent." Contractor Utility Sales
Co. v. Certain-Teed Prod., 638 F.2d 1061, 1084 (7th Cir. 1981). See also C. MCCORMICK,
HANDBOOK OF THE LAW OF EVIDENCE 633-34 (2d ed. 1974) (prior pleadings not conclusive
judicial admissions but admissible as evidentiary admissions).
106. Courts do not require that a judicial admission used for evidentiary purposes be within
the party's personal knowledge. However, the admission of a jurisdictional fact has little probative
value unless a party has personal knowledge. See supra note 103 and accompanying text.
107. See also Basso v. Utah Power & Light Co., 495 F.2d 906 (10th Cir. 1974) (one may be
held to admission of facts regarding own jurisdictional status).
108. Domicile is determined by a fixed, permanent home and an intention to return to that
place whenever absent. See C. Wright, supra note 16, at § 26.
109. See FED. R. EVID. 801 advisory committee notes; Strahorn, A Consideration of the
Hearsay Rule and Admissions, 85 U. PA. L. REV. 484 (1937).
110. Any collusion by the parties would be prohibited by 28 U.S.C. § 1359 (1948).
Ill. For example, decisions concerning which witness to call or what evidence to introduce
are left to the adversary process regardless of the wisdom of such choices in ascertaining the
truth of the matter sought to be proved.
 DEPA UL LA W REVIEW [Vol. 35:23

three major considerations, fairness, finality, and the juridical nature of a

fact, however, suggest otherwise.' 2
The first consideration is fairness. A person who defeats ,federal court
jurisdiction by avoiding a previous admission may gain four important
tactical advantages. First, as illustrated in Kroger, a defendant may avoid
the litigation entirely if the statute of limitations passes before the plaintiff
reinstates a state court suit.' 3 Second, even if the statute of limitations has
not run, relitigation of the jurisdictional issue and/or relitigation of the
entire case will increase the cost of litigation. Increased costs may cause a
party to settle unfavorably or to abandon the matter entirely. Third, reliti-
gation will delay any possible decision, again benefitting the party incurring
financial liability. Finally, the loser in the original action will get a second
chance to prevail on the merits following a successful jurisdictional attack.
As the Ninth Circuit noted, allowing a party to escape its own jurisdictional
assertions "would encourage litigants to wager on their success on the merits,
4
and if they lost, permit them to call the contest a nullity."''
As already noted, the prevention of unfairness alone is not dispositive
because unfairness inheres in the application of the Mansfield rule."' For
example, despite the inequities involved, the Court in American Fire & Casu-
alty Co. v. Finn'" applied the Mansfield rule in holding that a party who

112. It is also noteworthy that with some jurisdictional issues, notably citizenship, the
defendant may be the only actor in possession of the information. See supra note 108 and
accompanying text.
113. In Klee v. Pittsburgh & W. Va. R.R., 22 F.R.D. 252 (W.D. Pa. 1958), the defendant
belatedly presented a motion to amend its answer to deny diversity jurisdiction. Two years
earlier, the defendant had admitted that diversity existed. Four days before the two-year statute
of limitations was to expire, the defendant asserted that it was a corporation and citizen of
Ohio and Pennsylvania, and that the suit should be dismissed because the plaintiff was also a
Pennsylvania resident. Id. at 254. In response, the court stated that the Federal Rules of Civil
Procedure favor a liberal policy toward amendments. However, the court noted that it would
"constitute a monstrous injustice to permit, in effect, a defendant to change its citizenship
immediately prior to the running of the statute of limitations and thus deprive the plaintiff of
his cause of action." Id. at 255. Consequently, the court denied the defendant's motion. Id.
See also Young v. Handwork, 179 F.2d 70 (7th Cir. 1949), cert. denied, 339 U.S. 949 (1950)
(belated attack on jurisdiction denied); accord Biggs v. Public Serv. Coordinated Transp., 280
F.2d 311 (3d Cir. 1964) (same). See generally Stephens, Estoppel to Deny Federal Jurisdiction-
Klee and Di Frischia Break Ground, 68 DICK. L. REV. 39 (1969). In Kroger, of course, the
United States Supreme Court was unconcerned with the possibility of the passage of the statute
of limitations. 437 U.S. at 376 n. 20.
114. Murphy v. Kodz, 351 F.2d 163, 168 (9th Cir. 1965) (quoted in Kroger v. Owen Equip.
& Erection Co., 558 F.2d 417, 426 (8th Cir. 1977), rev'd, 437 U.S. 365 (1978)). Nevertheless,
the defendant in Kroger was allowed to raise the jurisdictional infirmity despite his previous
admission of the jurisdictional fact.
115. See supra notes 23-24 and accompanying text; see also C. WRIGHT, supra note 16, at 24.
116. 341 U.S. 6 (1951).
1985] SUBJECT MATTER JURISDICTION

removed a matter to federal court would not be estopped after an unfavorable

decision from subsequently arguing that removal was improper as a matter
of law.'I 7
But Mansfield and Finn are distinguishable when factual disputes, rather
than legal disputes, are at issue. The significance of the fact/law distinction
rests on a party's ability to protect itself from actions by opponents. In
Finn, for example, the opposing parties were equally able to reach their own
legal conclusion concerning the propriety of the defendant's removal. In
factual matters, on the other hand, only one of the parties may have access
to the "truth" of the jurisdictional assertion." ' In these circumstances, a
party is at the mercy of the opponent's assertions."19 Therefore, the unfairness
created by a belated jurisdictional attack is more pronounced than a belated
attack based on a change in legal position. 20 The party without independent
knowledge is left without any protection at all. 2 '
The second consideration is finality, which is more troublesome than would
appear at first blush. Admissions, of course, may be elicited at trial as well
as on the pleading.' 22 Thus if admissions are held insufficient to establish
jurisdictional facts, a litigant whose testimony established subject matter
jurisdiction could reopen the jurisdictional issue even after trial with new
testimony contrary to its previous statements.
The problem with this conclusion is best illustrated by a little creative
distortion of the facts that occurred in Duke Power."' In Duke Power, the
Court found that the plaintiffs had standing to attack the liability limitations
of the Price Anderson Act on grounds that absent the liability limitations,
the defendant Duke Power would be unable to build and operate a nuclear

117. Id. at 19.

118. Note, The Use of Discovery To Obtain JurisdictionalFacts, 59 VA. L. REv. 533, 542
(1973).
119. Id. As one commentator noted, "Only by having the opportunity to contest the
defendant's self-serving affidavits by use of discovery can the plaintiff meaningfully challenge
the defendant's assertions that the court lacks jurisdiction." Id.
120. "Unless the party securing an admission can depend on its binding effect, he cannot
safely avoid the expense of preparing to prove the matters on which he has secured the
admission, and the purpose of the rule is defeated." FED. R. CiV. P. 36, advisory committee
notes 1970. See also Finman, The Request for Admissions in Federal Civil Procedure, 71 YALE
L.J. 371, 418 (1962) (if rule is to fulfill function, admissions should be binding at trial).
121. A cautious plaintiff, therefore, might elect to avoid this risk by bringing its action
initially in the state court. In other contexts the Supreme Court has liberalized jurisdictional
limitations to dissuade plaintiffs from foregoing their choice of the federal forum. See United
Mine Workers v. Gibbs, 383 U.S. 713 (1966).
122. The distinction between judicial admissions and extra-judicial admissions does not
suggest otherwise since both have evidentiary or extra-judicial value. See supra note 103.
123. Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 77 (1978). For a
discussion of this case see supra note 93 and accompanying text.
 DEPA UL LA W REVIEW [Vol. 35:23

power plant.' 2 Assume momentarily that the corporate officers of Duke

Power testified that the company would not build the reactor without the
Price-Anderson protection." 5 On this basis, the district court could properly
conclude that standing was appropriate,' 26 could proceed to reach the merits
of the case, and could hold, as the district court did in the case itself, that
the Price-Anderson Act was unconstitutional.' 27
Further assume that after an adverse judgment on the merits, the cor-
porate officers changed their testimony and indicated that regardless of the
existence of the Price-Anderson Act limitations, the nuclear power plant
would be built. If the court were to follow the Ireland and Kroger path,
the matter of the plaintiffs' standing would have to be relitigated. Moreover,
this result would occur even absent bad faith on the part of the corporate
officers.' 2' The officers might reasonably conclude that proceeding in the
absence of the Price-Anderson limitation would still be more cost efficient
than to suspend the project.
Indeed, this problem may occur even without changes in pre-existing
testimony. Suppose in the Duke Power example that additional evidence was
presented to the Court after judgment. The evidence indicated that if Duke
Power did not complete the project, another utility company would.
Presumably, the inclusion of such evidence would defeat standing because
the requisite causal relationship between the Price-Anderson Act and the con-
struction of the nuclear facility would be denied.' 2 9 Again, strict adherence
to Mansfield would require that the standing issue be re-opened.
This absurd scenario is not far removed from what actually occurred in
Kroger.30 In Kroger, the third-party defendant, Owen, first admitted citi-
zenship solely in Nebraska. On the third day of trial, however, it alleged

124. The Court noted that establishing the requisite personal stake in the outcome of the
controversy required both a "distinct and palpable injury" and "a 'fairly traceable' causal
connection between the claimed injury and the challenged conduct." Id. at 72.
125. In the actual case, Duke Power's Executive Vice-President testified that "it would be
[his] recommendation that Duke proceed even in the absence of Price-Anderson." Id. at 77
n.22. Nevertheless, the willingness of nuclear parts suppliers and utility shareholders to agree
to construction absent the limitations was doubtful. Id.
126. See supra note 124.
127. Carolina Envtl. Study Group v. United States Atomic Energy Comm'n, 431 F. Supp.
203 (W.D.N.C. 1977).
128. Kroger, 437 U.S. at 383 (White, J., dissenting).
129. If Duke Power did not complete the nuclear facility, the plaintiffs could not show a causal
connection between the injury of the power plant and the Duke Power Company. See supra
note 124.
130. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978). The Kroger Court was
completely unmoved by what the court of appeals labelled "the most elementary considerations
of judicial fairness." 558 F.2d at 427. "Our holding is that the District Court lacked power to
entertain the respondent's lawsuit against the petitioner. Thus, the asserted inequity in the
respondent's alleged concealment of its citizenship is irrelevant. Federal judicial power does not
depend upon 'prior action or consent of the parties."' 437 U.S. at 377 n.21.
19851 SUBJECT MATTER JURISDICTION 43

Iowa citizenship as well. Apparently, Owen's second assertion was unchal-

lenged (but assume for the moment that it was contested). If the Court
heard evidence on the citizenship issue, and then ruled against Owen, the
Kroger logic suggests that Owen would still be free to present more evidence
to defeat diversity jurisdiction. But, when would the fact-finding process
end?
The final factor mitigating against the Kroger-Ireland approach is the
juridical nature of a fact. Courts reach factual conclusions even in jurisdic-
tional disputes that may or may not be accurate.' 3' The derivation of facts
in the legal system is not the derivation of "truth." Indeed, Jerome Franke
once characterized juridical facts as mere guesses:
No matter how certain the legal rules may be, the decision remains at
the mercy of the courts' fact-finding. If there is doubt about what a court,
in a law-suit, will find were the facts, then there is at least equal doubt
about its decision ....
What is [a fact]? Is it what actually happened between [the parties]?
Most emphatically not. At best it is only what the trial court-the trial
judge or jury-thinks happened. What the trial court thinks happened may,
however, be hopelessly incorrect. But that does not matter legally speak-
ing. For court purposes, what the court thinks about the facts is all that
matters .... Judicially, the facts consist of the reaction of the judge or
jury to the testimony. The [fact found in the adjudicative process) is merely
a guess about the actual facts. There can be no assurance' that that [fact],
that guess, will coincide with those actual, past facts."
The uncertainty of factual determinations is compounded by other factors.
Franke's skepticism is appropriate even when all relevant evidence is intro-
duced at trial. However, this optimum condition for the adjudication of
facts seldom, if ever, occurs. The "facts" determined by litigation are often
a function of disparate factors. The type of inadvertence sought to be avoided
by Mansfield is certainly one factor. Other factors include the abilities of
the attorneys, the credibility of the witnesses, the choice in presentation of
evidence due to tactical considerations, and the appearance and intelligibility
of the documentary support. This list obviously is not exhaustive, yet neither

131. "[E]very court has jurisdiction to decide its own jurisdiction, unless the legislature has
decreed otherwise. When a court has jurisdiction to decide an issue, it has the power to decide
wrongly as well as rightly." Dobbs, supra note 1I, at 494.
132. J. FRANKE, COURTS ON TRIAL: MYTHS AND REALITIES 15-16 (1949). Franke's argument
was echoed by the late Justice Harlan in In Re Winship, 397 U.S. 358 (1970) (Harlan, J.,
concurring). In Winship, Justice Harlan -commented on whether instructing a jury on different
standards of proof actually led to different results:
[l]n a judicial proceeding in which there is a dispute about the facts of some earlier
event, the factfinder cannot acquire unassailably accurate knowledge of what hap-
pened .... A second proposition, which is really nothing more than a corollary
of the first, is that the trier of fact will sometimes, despite his best efforts, be
wrong in his factual conclusions.
Id. at 370.
 DEPA UL LA W REVIEW [Vol. 35:23

these nor any other factors tend to achieve a high correlation with what is
actually true. 33
'
What the foregoing suggests is that Mansfield, if applied to factual disputes,
may only minimally accomplish its goal of protecting against improper federal
court intrusion.' 3 While a court may occasionally discover an inadvertent
factual mistake, the nature of "facts" is too variable to place much stake
in any increased certitude by reopening the factual issue. As the Court stated
in Stoll v. Gottlieb, ' retrial provides "no reason to expect that the second
decision will be more satisfactory than the first."' 3 6 There is no guarantee
of truth.

III. RESOLUTION

Having recognized the competing factors with respect to attacking subject

matter jurisdiction at any time, it must be determined how the issue should
be resolved. Fortunately, the framework for resolving the issue may already
exist in cases in which the Supreme Court determined the res judicata effect
of judgments from courts that did not have subject matter jurisdiction. In
most of these cases, the Court has held that res judicata applied.' 37

133. See generally I. GOLDSTEIN & F. LANE, GOLDSTEIN TRIAL TECHNIQUE (2d ed. 1977).
134. As the authors state in MOORE'S FEDERAL PRACTICE:
Jurisdiction represents the distribution of judicial power in our federal system as
blueprinted by the Constitution and declared by Congress; and the federal courts
ought therefore to be mindful that they stay within defined limits. These are broad
working principles and ought not to be applied destructively .... is very
[I]t
questionable whether a party who has invoked the federal court's jurisdiction should
be allowed to raise lack of federal jurisdiction after he has lost on the merits. And
only in rare cases should an appellate court on its own motion raise lack of the
district court's jurisdiction.
I MOORE'S FEDERAL PRACTICE, supra note 89, at 0.60[4]. The authors conclude by stating that
the Mansfield doctrine does not "increase respect for judicial administration, and [is] not
necessary for the preservation of the proper distribution of judicial power." Id.
135. 305 U.S. 165 (1938).
136. Id. at 172. The Court in this context was discussing the legal as well as the factual issue
at stake.
137. See, e.g., Stoll v. Gottlieb, 305 U.S. 165, 172 (1938), in which the Court stated., "[a]fter
a federal court has decided the question of the jurisdiction over the parties as a contested
issue, the court in which the plea of res judicata is made has not the power to inquire again
into the jurisdictional fact." See also Underwriters Nat'l Assurance Co. v. North Carolina
Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691 (1982) (judgment in one state conclusive
upon merits in another state if first had jurisdiction). Some commentators suggest that applica-
tion of res judicata depends on whether the issue was actually litigated. See W. RICHMAN &
W. REYNOLDS, UNDERSTANDING CONFLICT OF LAws 294-96 (1984). See also Durfee v. Duke,
375 U.S. 106 (1963) (holding that collateral attacks are precluded if jurisdictional issues have
been fully and fairly litigated in an earlier proceeding). The Supreme Court, however, recently
indicated that subject matter jurisdiction issues may not be raised in a collateral proceeding
when the party could have done so in the first action. See Underwriters Nat'l Assurance Co.
v. North Carolina Life & Accident & Health Ins. Guar. Ass'n, 455 U.S. 691, 712 (1982);
19851 SUBJECT MATTER JURISDICTION

The process that the Supreme Court utilized, however, to decide those
cases is more significant than the actual results. In each case, the Court
weighed the related litigation policies of finality and judicial administration
against the policies behind the limited grant of federal jurisdiction., 8 The
requirement of "true" subject matter jurisdiction was not absolute and,
indeed, in the majority of cases was subordinated to the countervailing
litigation concerns.' 39 Thus, extrapolating from this framework, resolution
of the jurisdictional facts issue does not necessitate blind adherence to the
Mansfield rule.
Although the Court was unclear in this regard, this is undoubtedly what
occurred in Duke Power when the Court did not apply Mansfield literally
to resolve jurisdictional facts on appeal. Had the Court literally applied
Mansfield to issues on appeal, the violence to litigation-related policies would
have been especially obvious. One concern is the need for finality, a policy
that expressly underlies the "clearly erroneous" rule governing review of facts
on appeal. A second concern is inefficiency. If a party desires to introduce
new evidence regarding jurisdictional issues, the court must remand the case
to the trial court for further proceedings. This problem may become par-
ticularly troublesome since Mansfield does not limit the number of times
that the issue may be redetermined.'""
The more difficult issue is how the jurisdictional facts issue should be
resolved at the trial court level. An examination of the most extreme case
places this issue in perspective. After losing the jurisdictional issue at trial,
should a court permit a defendant to reopen the controversy and introduce
additional evidence?"' It is almost a virtual certainty that such tactics would
be disallowed. The question is why?
There are two potential answers. First, retrial promotes an egregious inef-
ficiency that parallels the reopening of a factual inquiry on appeal. Although
remand problems are not an issue, the trial court would still be unable to
complete the litigation effectively. A defendant could continually attempt
to introduce new evidence in a war of attrition. The second concern, however,
is not simply limited to administrative efficiency, but again relates to the
nature of "facts" in the legal system. Continual relitigation of an issue does

Sherrer v. Sherrer, 334 U.S. 343 (1948); Chicat County Drainage Dist. v. Baxter State Bank,
308 U.S. 371 (1940).
The Supreme Court has sustained collateral attacks for lack of subject matter jurisdiction
only in Bankruptcy Act cases, see Kalb v. Feuerstein, 308 U.S. 433 (1940), in which Congress
"pre-empted" state court jurisdiction, or where sovereign immunity was at stake. See United
States v. United States Fidelity & Guar. Co., 309 U.S. 506 (1940).
138. See generally MooRE, supra note 12.
139. Of similar authority is the rule that jurisdictional facts may be collaterally estopped.
See Middlebury Assoc. Inc. v. R.E. Bean Constr. Co., 446 F. Supp. 28 (D. Vt. 1977); Napper
v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634 (5th Cir. 1974).
140. But see Dobbs, supra note 11.
141. Limited instances exist when factual issues may be reopened after trial. See FED. R.
Civ. P. 60(b)(2).
 DEPA UL LA W REVIEW [Vol. 35:23

2
not assure a greater degree of "truth."" Thus, once a matter is determined,
there is little sense in redetermining the issue.
Once this is understood, it is apparent that retrial is not the telling point
at which the reopening of the jurisdictional fact issue should be prohibited.""
Rather, the appropriate solution is to foreclose the issue when the jurisdic-
tional fact has been "proved" rather than simply waived. The test, in short,
is whether the jurisdictional facts have been established by probative means
or established only by waiver. When the facts are established by probative
means, non-foreclosure harms fairness and finality concerns, and does so
with only limited or negligible benefits. On the other hand, requiring a fact
to have a probative basis in order to establish jurisdiction assures both that
an indication of jurisdiction will affirmatively appear in the record,"' and
also prevents consensual access to federal jurisdiction, whether framed in
a legal or factual context."'

142. See supra note 135.

143. A plausible response to this aspect of the model is that the line is best drawn at retrial.
Drawing the line at retrial guards against the situation resulting in jurisdiction gained by
inadvertance. See supra note 20. A trial, simply because of its showcase nature, highlights issues
in a much more dramatic way than do pleadings. Similarly, before testifying in a public trial,
a party might be more diligent in ascertaining the correctness of all statements. For both of
these reasons, the jurisdictional issue might not escape unnoticed, as it may if resolved in the
pleadings.
As a theoretical matter, however, this rationale is not persuasive. A trial judge has no more
license to be lax in finding jurisdiction based on pleadings than upon in-court testimony.
Similarly, a litigant or the attorney is charged both in pleadings, FED. R. Civ. P. il, and in
testimony, to make truthful assertions.
Some have suggested that when intentional conduct, as opposed to inadvertence, causes jurisdic-
tional infirmity, the remedy should be disciplinary action, not assumption of jurisdiction. See
Page v. Wright, 116 F.2d 449, 455 (7th Cir. 1940); Basso v. Utah Power & Light Co., 495
F.2d 906 (10th Cir. 1974).
144. See Dobbs, supra note I!.
145. But see Eisler v. Stritzler, 535 F.2d 148 (Ist Cir. 1976). In Eisler, the court held, in
contrast to the position taken in this article, that Mansfield allows jurisdictional questions to
be reopened in all circumstances at least where the jurisdictional facts are based on admissions.
In so holding, the Eisler court cited numerous cases. The cases cited in Eisler, however, do not
go so far as to allow a defendant to disavow assertions regarding its own jurisdictional status.
Rather, the admissions in question were either admissions of legal conclusions or admissions
of an opponent's jurisdictional status without personal knowledge. For example, in Gilbert v.
David, 235 U.S. 561 (1914), a defendant admitted the plaintiff's domicile without personal
knowledge. The plaintiff was not allowed to use this admission against the defendant. In Page
v. Wright, 116 F.2d 449 (7th Cir. 1940), the defendant admitted the legal conclusion and not
the jurisdictional facts. In Morris v. Gilmer, 129 U.S. 315 (1889) and Steigleder v. McQuesten,
198 U.S. 141 (1905), the defendants' original answers were silent as to the jurisdictional status
of the plaintiffs, and the courts correctly held that any tacit "admission" as to the jurisdictional
status of the plaintiffs by the defendants would not save the plaintiffs' status from later attack.
Again, a party's admission of his own jurisdictional status was not involved. Finally, in Basso
v. Utah Power & Light Co., 495 F.2d 906 (10th Cir. 1974), also cited by Eisler, the court held
that the jurisdictional facts admitted by the defendant did not conclusively establish jurisdiction.
1985l SUBJECT MATTER JURISDICTION

This approach, moreover, is consistent with the principles underlying a

court's jurisdiction to determine its jurisdiction. These principles recognize
that a court may erroneously find federal jurisdiction without offending
statutory or constitutional limitations.'" Such error may occur in a legal
determination or in a factual determination. The nature of limited jurisdic-
tion presupposes that the imperfection inherent in the judicial system may
lead to the exercise of jurisdiction in cases in which, if the "actual" facts
were determined, the exercise of jurisdiction would be inappropriate. Any
problem with this result is in the nature of the legal system, not in the
jurisdictional limitation.'
The suggested model, of course, is not free from difficulty. A first
objection is basic. Does a fact/law distinction make a difference?'4 Assume
that a plaintiff alleges Michigan residence. Is there a difference between the
defendant answering the pleading by claiming that "diversity jurisdiction
exists" as opposed to answering by claiming to be from Iowa? Any distinction
between these two responses may seem merely formalistic. Yet, no matter
how unsatisfactory, or at times blurred, the fact/law distinction is, it is one
that permeates legal analysis. 49 Indeed, in a matter almost directly on point,
the Supreme Court held that a judgment may be granted collateral estoppel
effect on an issue of fact, even if an estoppel of law would be impermissi-
ble.1" ° Collateral estoppel is, moreover, appropriate even when the factual
resolution effectively decides the legal issue. As the Court stated,

The court so held not because the admission was improper, but because the admission stated
only that the defendant engaged in business in Utah, and not that its principal place of business
was there. In actuality, Basso and Eisler conflict over the proposition that facts admitted by a
party regarding its own jurisdictional status subsequently may not be disavowed by that party.
146. United States v. United Mine Workers, 330 U.S. 258 (1947) (violation of order subject
to contempt citation even if order made without jurisdiction). See Moore, supra note 12 (if
court finds jurisdiction, collateral attack permissible only if plainly beyond jurisdiction); Dobbs,
The Validation of Void Judgments: The Bootstrap Principle, 53 VA. L. REV. 1003 (1967)
(determination that court has jurisdiction is binding, whether correct or incorrect, unless reversed
on appeal).
147. See Dobbs, supra note 11, and cases cited therein. "When a court had jurisdiction to
decide an issue, it has the power to decide wrongly as well as rightly." Id. at 494. See also
Stoll v. Gottlieb, 305 U.S. 165 (1938) (judgment by court is controlling until reversed by
appellate court).
148. Even Page v. Wright, 116 F.2d 449 (7th Cir. 1940), which is normally cited to the effect
that Mansfield should be applied stringently, suggests that the harsh Mansfield requirements.
may be unnecessary when the issue is factual and not legal. In Page the defendant admitted
that "this court has jurisdiction of the parties hereto." The Seventh Circuit rejected estoppel
principles and allowed the defendant to raise a belated jurisdictional attack, but nonetheless
indicated that the result may have differed had the defendant admitted the facts of its
jurisdictional status rather than simply stated a legal conclusion.
149. Other critical fact/law distinctions occur in pleading, evidence, judge/jury findings, and
appellate procedure and jurisdiction. See generally C. WRIGHT, A. MI.LER & E. COOPER,
FEDERAL PRACTICE & PROCEDURE (1982).
150. Becher v. Contoure Laboratories Inc., 279 U.S. 388, 391 (1929).
 DEPA UL LA W REVIEW [Vol. 35:23

"[e]stablishing a fact and giving a specific effect to it by judgment are quite

distinct." '
Employing the fact/law distinction to issues of jurisdiction is
not an anomaly.
Moreover, the fact/law distinction promotes Mansfield concerns because
requiring a factual basis for jurisdiction to be established serves to prevent,
or at least limit, a grant of inadvertent jurisdiction.'52 A prudent plaintiff,
for example, will insist that the opponent admit the factual basis of any
admission of jurisdiction, rather than answer that "jurisdiction exists." In
essence, an incentive will be created for the court and the opposing parties
to more thoroughly consider the jurisdictional issue.
A second difficulty with the model is in its application as it requires a
determination of whether the fact-finding was accomplished by probative
means or by waiver. Some cases may be easy. For example, an admission
that is beyond the personal knowledge of a party (an admission of an oppo-
nent's domiciliary) is not probative."' This type of admission may ap-
propriately be viewed as a concession of the issue and, therefore, is an in-
sufficient basis for jurisdiction. Other particular fact-finding methods,
however, must be scrutinized in order to determine if they are based on
probative or waiver principles.
Applying this analysis to the estoppel and discovery sanction issues present
in Kroger and Ireland is insightful. The use of estoppel will depend upon
what is to be estopped. When, as in Kroger, a party seeks to avoid an
admission based upon personal knowledge, estoppel or its comparable pro-
visions in the Federal Rules" 4 should apply. Estoppel based simply upon the
actions of the party, however, will not sustain jurisdiction. Thus, the estoppel
sought in American Fire & Casualty Co. v. Finn"' was properly denied since
its premise was that the party who originally removed the case to federal
court should not later be allowed to avoid the federal court decision by de-
nying diversity. A party's request for removal, however, is not an admission
of fact, and is not in any sense probative of a factual issue.

151. Id.
152. The court may similarly demand that the party asserting subject matter jurisdiction
justify the allegations by a preponderance of the evidence. See generally McNutt v. General
Motors Acceptance Corp., 298 U.S. 178 (1936) (burden of proving jurisdiction on asserting
party); Backhorn v. Adlib Assoc., Inc., 345 F.2d 173 (9th Cir. 1965) (factual inquiry must be
conducted when question of diversity is raised); Rock Island Millwork Co. v. Hedges-Gough
Lumber Co., 337 F.2d 24 (8th Cir. 1964) (must show substantial dispute between diverse parties
to maintain action in federal court).
153. See supra note 101.
154. A matter is deemed admitted unless the party to whom the request for admission is
directed responds with a written answer or objection within 30 days after service of the request.
FED. R. Civ. P. 36.
155. After the defendant in Finn removed the case to federal court, he sought and was
allowed to avoid federal court jurisdiction. A party's request for removal is not an admission
of fact. 341 U.S. at 6.
19851 SUBJECT MATTER JURISDICTION

The discovery sanction in Ireland presents an easier issue than estoppel.

Although it is arguable that establishing jurisdiction by sanction is equivalent
to finding jurisdiction "by judicial fiat,"' 5 6 the manner in which the Court
decided Ireland belies this argument. The Ireland Court applied the rule that
failure to respond to a request for proof establishes a presumption in favor
of the truth of the matter sought to be discovered.'" Such a presumption is
expressly a more-likely-than-not conclusion. Thus, accepting the rationale
utilized in Ireland, the discovery sanction is permissible when applied to any
issue, including subject matter jurisdiction. The sanction is simply a method
of factual proof.
The final objection to the proposed analysis is that it allows any method
of proof that has significant probative value to establish jurisdiction, even
though the method of proof may also be based primarily on waiver principles.
For example, returning again to the party admission, no question exists that
the admissibility of that evidence is primarily based on waiver notions. '
The problem with this objection, however, is that it again wholly undercuts
the ability to prove the jurisdictional issue. Elements of waiver pervade the
legal system. Decisions concerning which evidence to introduce, which ques-
tions to pose on cross-examination, and which objections to raise, all contain
various waiver elements. 5 9 To suggest that an element of waiver in any
factual proof can totally disallow that element's validity in the determination
of jurisdiction is to return to square one. It "fetishistically"' 6 0 suggests that
any factual issue that relates to jurisdiction cannot be foreclosed prior to
final judgment. This result is far too great a price for the minimal benefit
that may be gained by a belated jurisdictional attack.

CONCLUSION

In Kroger and Ireland the Supreme Court, without serious consideration,

suggested that normal fact-finding rules cannot be employed in the adjudi-

156. Stoll v. Gottleib, 305 U.S. 165, 171 (1938). It is arguable that without a determination
of subject matter jurisdiction, a court is powerless to issue the sanction order. The power in-
herent within the jurisdiction to determine jurisdiction, however, is not so limited. For exam-
ple, in United States. v. United Mine Workers, 330 U.S. 258 (1947), the Supreme Court held
that even prior to a determination that a case was properly before the court, the court is em-
powered to issue an injunction. Id. at 290. If not, a court would indeed be powerless to con-
trol the litigants before it. Not surprisingly, the power to issue orders is described as a neces-
sity. In any event, if United Mine Workers is correct and a district court may issue a contempt
citation and imprison a recalcitrant defendant, a discovery sanction is permissible a fortiori.
See generally Note, supra note 118 (orders by court are of necessity and must be obeyed).
But see Z. CHAFFEE, SOME PROBLEMS IN EQUITY 365-67 (1950).
157. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinea, 456 U.S. 694, 705
(1982) (citing Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909)).
158. See supra note 104 and accompanying text.
159. See generally Wainwright v. Sykes, 433 U.S. 72 (1977) (contemporaneous objection
rule).
160. See HART & WECHSLER, supra note 25, at 836.
 DEPA UL LA W REVIEW [Vol. 35:23

cation of federal subject matter jurisdiction issues. In so holding, the Court

rejected finality and fairness policies and placed into question even the most
straightforward method of factual proof-the party admission of its own
jurisdictional status.' 6' Most important, these opinions did not apply a proper
understanding of the inherent vagaries of factual proof in an adversary
system. Rather, in the interest of protecting limited jurisdiction, the Court
set unrealistic goals for the fact-finding process. A margin of error is implicit
in fact-finding and cannot be eliminated even when the underlying issue is
jurisdiction.
A better approach to resolving the jurisdictional facts issue is to examine
the theoretical bases that underlie the factual findings rather than to apply
an unrealistically stringent rule. When "facts" are found pursuant to mech-
anisms that are simply waivers of the disputed issue, the rule allowing
questions about subject matter jurisdiction to be raised at any time in the
proceedings is fully implemented, and accordingly, is appropriately applied.
On the other hand, when the "facts" supporting jurisdiction are found by
probative means, the suspension of normal rules of adjudication is unwar-
ranted. Facts are not certainties.

161. "lilt is a grievous hardship for litigants to be led over the long course of federal justice
in the belief that they are having their rights adjudicated, only to learn at the end that the
entire proceeding is a nullity." Hill v. Walker, 167 F. 241, 247 (8th Cir. 1909). See also Morse,
Judicial Self Denial and Judicial Activism: The Personality of the Original Jurisdiction of the
District Courts, 4 CLEVE-MAR. L. REV. 7 (1955) (court's responsibility cannot be facilitated by
denying jurisdiction upon technicalities).